December 2, 2007 - Connecticut Post (CT)

Drug Laws Called Unfair To Minorities

By Peter Urban

WASHINGTON - More than 200 inmates incarcerated in
federal prisons in Connecticut for crack cocaine offenses could
see their sentences cut by an average of 27 months under a plan
contemplated by the U.S.
Sentencing Commission.

The independent commission is considering applying newly established
crack cocaine sentencing guidelines retroactively to those sentenced
prior to Nov. 1, when the guidelines took effect.

In Connecticut, the retroactive proposal would mean that 57
federal inmates would be eligible for release within the first
year, 87 more would be eligible for release in the following
five years and another 47 after that.

Overall, 19,482 federal inmates sentenced between Oct. 1,
1991 and June 30, 2007 could be eligible for a reduced penalty
with as many as 3,800 freed within the next year.

Cliff Thorton, executive director of Hartford-based Efficacy, a nonprofit social justice organization,
said there is a definite racial and socio-economic bias in the
nation's drug laws. "There are two types of justice -- one
for the well-connected and one for the unconnected," he
said.

Thorton pointed out that those convicted of drug crimes involving
crystal methamphetamine - a drug popular in rural, White America
- do not face similarly stringent sentencing guidelines even
though the drug is considered as dangerous as crack.

"The driver behind this whole thing is money and the
glue is race. If whites were incarcerated for drugs like this
there would literally be armed insurrection," he said.

While applauding the proposed changes, Thorton said more needs
to be done to repair the damage of two decades of discrimination
that has "screwed up the lives" of not only the crack
convicts but their families and communities.

"I feel strongly that we have to look at what we are
going to do with all these people. We've screwed up their lives
forever. It is difficult to reintegrate into the community and
it will be tough to get jobs," he said. "And, I'd be
willing to bet that the kids on the street today - one or both
of their parents is serving time for drug charges."

Congress established harsh mandatory minimum penalties for
crack cocaine in 1986 after the death of University of Maryland
basketball star Len Bias, who had just been selected as the top
NBA pick by the Boston Celtics. Bias died after snorting powder
cocaine.

Since then, more than 76,000 crack offenders have been sentenced
under the federal guidelines. In 2000, the average prison sentence
for trafficking in crack was 117 months, while the average sentence
for trafficking in powder cocaine was 74 months.

The commission, which was established in 1984 to bring more
consistency to sentencing in federal courts, has recommended
a reduction in harsh sentencing guidelines for crack cocaine
offenses since 1995 but had been thwarted by Congress until this
year.

This May, the commission again proposed reducing penalties
for crack cocaine to bring them more in line with powdered cocaine
and Congress took no action to block the effort. The new guidelines
took effect Nov. 1. The change is expected to reduce new crack
sentences by an average of 15 months.

The commission is now deciding whether to apply the guidelines
retroactive as it has done previously when it reduced sentences
involving LSD and for growing marijuana.

More than 33,000 letters of comment have already been sent
to the commission on the retroactive proposal. The commission
also recently held a public hearing on the subject at Georgetown
University School of Law.

The Bush administration opposes the new plan, arguing that
it would overburden federal courts and release potentially dangerous
drug offenders.

U.S. Attorney Gretchen Shappert, who serves in the Western
District of North Carolina, argued against applying the sentencing
guidelines retroactively saying it would harm African-American
communities. "Crack cocaine is not a victimless crime. The
victims are the people who are addicted to it, their neighbors
and the communities," she said. "They create open-air
drug markets where there is 24-hour-a-day dealing in relatively
small quantities of crack that profoundly impact the community."

Shappert also argued that going back to review the 536 defendants
in her district that could be eligible for a reduced sentence
would take time away from prosecuting new cases.

"We have seen, in the past year and the past three years
in Charlotte, a significant rise in the murder rate, an increase
in violence. Indeed, the murder rate has gone up 44 percent since
2005 and has remained at that level," she said.

U.S. Attorney Kevin O'Connor in Connecticut agreed with Shappert
and said he is concerned that revising prior sentences for crack
convictions would burden his office and the courts.

"One of the challenges is not just the number of cases
involved but many of the prosecutors in those cases have left
the office," he said. "So we would have to have someone
else get up to speed on those files that have not been looked
at for years."

O'Connor said that his office has focused most of its drug
enforcement strategy on those bringing large quantities of drugs
into the state rather than on the street-level dealer. Most of
the cases involve crack cocaine or heroin, which tend to be the
drugs of choice in Connecticut.

State Rep. Michael Lawlor, who co-chairs the Judiciary Committee,
said that treating crack cocaine differently than powdered cocaine
is unfair and ineffective.

"We are talking about different penalties for the same
drug. It would be like having one penalty for drunk driving if
you drank whiskey and a different penalty if you drank beer,"
Lawlor said.

Until 1995, Connecticut imposed higher penalties for those
convicted of drug crimes involving an ounce of powdered cocaine
or 0.5 grams of crack cocaine. State lawmakers tried to raise
the "trigger" to an ounce for both types of cocaine
but Gov. Jodi Rell vetoed that bill.

A compromise was reached later, setting the "trigger"
at 0.5 ounces for each variety.

Beyond the obvious disparity in setting different standards
for essentially the same drug crime, the law also drew sharp
criticism as unfairly targeting poor African-Americans.

Of the 19,482 federal inmates that could receive a reduced
sentence for possession and distribution of crack cocaine 86
percent are African-American, 8 percent Hispanic and 6 percent
white, according to the commission's analysis.

The commission did not break down the racial or ethnic profiles
of the 217 Connecticut inmates that could be eligible for a reduced
sentence. Hilary Shelton, director of the NAACP's Washington
bureau, urged the commission earlier this month to make the sentencing
guidelines retroactive.

"Few people today argue that policy makers could have
foreseen, 20 years ago, the vastly disparate impact the 1986
law would have on communities of color, yet the fact that African-Americans
and especially low-income African-Americans continue to be disproportionately
and severely penalized at much greater rates than white Americans
for drug use," she said.

While 83 percent of those convicted of federal cocaine offenses
are African-American, the federal government's most recent survey
found that less than 18 percent of the nation's crack cocaine
users were African-American, Shelton said.

U.S. District Judge Reggie B. Walton also told the commission
that the sentencing disparity between crack and powdered cocaine
is fundamentally unfair to the African-American community that
has seen a "disproportionate number" of African- American
males incarcerated for significant periods of time as a result
of their involvement in crack cocaine.

After some soul searching, Walton said he also came to believe
that the new guidelines should apply retroactively.

"I just don't see how, in good faith, one can say that
just because someone was sentenced on October 30th, that they
get a certain sentence, whereas someone who's sentenced on November
1st receives a different sentence," he said.

While the commission can take some steps to reduce the disparity
in sentencing, it cannot change the mandatory minimum and maximum
sentences in the law enacted by Congress.

Congress, however, is contemplating those changes in at least
three bills that have been introduced in the Senate.

Sen. Joe Biden, D-Del., has proposed legislation that would
eliminate sentencing differences between crack and powder cocaine
in favor of a single mandatory minimum at the current powder
cocaine levels.

Sen. Orrin Hatch, R-Utah, has introduced a bill this year
that would increase the amount of crack cocaine needed to trigger
the five-year mandatory minimum sentences from five to 25 grams
and the 10-year mandatory minimum from 50 to 250 grams.

And, Sen. Jeff Sessions, R-Ala., has proposed a bill that
would raise the crack cocaine "trigger" to 20 grams
for the five-year minimum sentence and 200 grams for the 10-year
minimum. It would also reduce the "trigger" for powdered
cocaine from 500 grams to 400 grams for the five-year minimum
and 5 kilograms to 4 kilograms for the 10-year minimum.

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